Defamation Flashcards
define defamation
Defamation Act 2009
S. 6(2)
Defamation is the publication, by any means, of a defamatory statement concerning a person to one or more than
one other person.
- Publication
- Defamatory Statement
- Identifies the plaintiff
- No defence
is the test of whether a statement is defamatory or not subjective or objective?
In order to be actionable in defamation, the statement must be capable of damaging the reputation of another.
The test of whether a statement is defamatory is therefore an objective one and so the court considers whether the statement is one that would lower the individual in the eyes of right thinking members of society
define statement
S.2 – Statement
a) A statement made orally or in writing
b) Visual images, sounds, features and any other method signifying meaning
c) A statement broadcast on radio or tv or published on the internet.
d) Electronic communications
define publication
S.6(4)
It is not a publication if the statement is published to the person to whom it relates and to a person other than to whom it relates in circumstances where
a. It was not intended that the statement would be published to second person and
b. It was not reasonably foreseeable that the publication to the first person would result in publication to the second.
what was established about a defamatory statement in Berry v Irish times
Repetition of a defamatory statement is defamation. Here, it was a photo of a defamatory placard.
is accidental publication defamatory?
Paul v. Holt - Accidental publication is defamatory if it is reasonably foreseeable that the statement would be communicated to
persons other than the plaintiff.
identification
S.6(3)
A defamatory statement concerns a person if it could be reasonably inferred as referring to him or her.
Sinclair v. Gogarty - identification
Two jews on Sackville street was deemed sufficient to identify them, as they were the only jews with shops there.
what are the facts of Hill v Cork Examiner
The suggestion that the pl was imprisoned for sexual offences rather than bodily harm defamed him, even though he had a diminished reputation.
what are the facts of Berkoff v Burchill?
In Berkoff v Burchil, the actor Stephen Berkoff brought an action against a Sunday Times journalist who stated in her column that he was ‘hideously ugly’. While the article did not claim he was a bad actor or engaged in wrongful activity, the judge upheld the claim in defamation on the basis that Burchill’s actions ‘held him to ridicule and contempt’.
is it necessary to prove that the defendant intended to refer to the plaintiff ?
it is not necessary to prove that the defendant intended to refer to the plaintiff if the general public would honestly and reasonably believe that the article did in fact referred to the plaintiff. In those circumstances, it will be considered defamatory per se.
defamatory innuendo
Words will be given their ordinary and natural meaning when assessing whether they are capable of being defamatory. That said, a statement which appears innocent on its face, may be actionable where it contains defamatory innuendo
what are the facts of Glennon v The star -defamatory innuendo
The positioning of an unrelated photograph beside a story on the maltreatment of horses led to a 20,000 settlement and the courts have been willing to look beyond the printed matter and consider the impact and implication of the statement
what are the facts of Reynolds v Malocco
The plaintiff was a well known Dublin nightclub owner who brought an action against the defendant regarding a magazine article referring to him as a ‘gay bachelor’. The defendant contented that the word ‘gay was an adjective used to describe the plaintiff’s joyful character and was not intended as commentary on his sexuality.
The court found that the words used should be given their ordinary meaning and were being used to describe the plaintiff’s sexuality.
In the words of Kelly J.. “One would have to be a resident on the moon not be aware” of the fact that the word “ synonymous with homosexuals and homosexual activity”. The statement therefore implied that the plaintiff was a hypocrite who was concealing his true sexuality and this was capable of being defamatory.
what are the facts of cassidy v daily mirror newspaper ltd?
the defendant newspapers pictured the plaintiff with
her husband announcing their engagement when in fact the couple had been married for
some years and had children. The plaintiff sued for defamation because although the picture and caption were innocuous in themselves, the suggestion to be taken from it was that she
was living in sin and her children were illegitimate. The court upheld the claim and awarded damages against the newspaper.
defences to defamation s.15
- Truth
- E-commerce Directive
- Absolute privilege
- Direct privilege
- Honest opinion
- Offer of amends
- Apology
- Fair and reasonable publication
- Innocent publication
Truth as a defence
S.16(1)
Defence to prove that the statement is true in all material aspects.
It is worth noting that it is not necessary for the defendant prove that the statement is true in every detail so long as the substance of the statement can be proven to be true
statement of fact v statement of opinion - truth defence
Truth will provide a good defence to an action in defamation where the statement is a statement of fact. But where the statement is an opinion, the defence of fair comment/honest opinion is more likely to apply.
what are the facts of Alexander v North Eastern railway - truth and justification
the plaintiff was fined and sentenced to two weeks imprisonment for travelling on a train without paying the correct ticket. The defendant printed and displayed a poster that stated that the plaintiff had been fined and was sentenced to three weeks imprisonment and the plaintiff sued based on the inaccuracy in the statement.
The defendant successfully pleaded the defence of justification because while he statement itself may have contained some factual errors, the inaccuracies did not alter the general tenor of the statement
what are the different occasions in which absolute privilege arises
S.17 provides a list:
In connection to houses of Oireachtas/ EU, or by judges or witnesses etc. Also reports made by govt bodies that
are fair and accurate. Also in front of parliamentary committees or tribunals, or in such reports etc.
Qualified privilege
S.18(2)
It is a defence to show that:
a. The statement was published to a person who –
i. Had a duty to receive or interest in receiving the information contained in the statement, or
ii. The defendant believed upon reasonable grounds that the said person or persons had such an interest
or duty and
b. The defendant had a corresponding duty to communicate or interest in communicating the information
to such persons.
Thus, need to show defendant was under a duty. Once established, can only be lost by showing malice.
when is an opinion considered to be honestly held?
an opinion is honestly held if:
a. the defendant believed in the truth of the opinion;
b. the opinion was based on allegations of fact; and
c. the opinion related to a matter of public interest.
how to distinguish between allegations of opinion and fact
Section 2191) provides that the court shall have regard to the following:
a. The extent to which the statement is capable of being proved;
b. The extent to which the statement was made in circumstances in which it was likely to have
been reasonably understood as a statement of opinion rather than a statement consisting of
an allegation of fact; and
c. The words used in the statement and the extent to which the statement was subject to a
qualification or a disclaimer or was accompanied by cautionary words.
what is Public interest ?
S.18(7)
Must be legal, social or moral interest.
